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Exhibit 10.1
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement") is hereby made and entered
into as of the 30th day of March, 2001 between J Group Holdings, Inc, a Delaware
corporation ("J Group"), located at 0 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000 and Infotopia, Inc., a Nevada corporation ("Infotopia"), located
at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
RECITALS
WHEREAS, Infotopia is in the business, among other things of
advertising, promoting, marketing, selling and distributing products in various
media, including television, print and retail, and
WHEREAS, Infotopia desires to license from J Group rights to
advertise, promote, market, sell, distribute and otherwise exploit the following
skin product lines, as referred to by J. Group: "Jules & Xxxx," "Bubbe's Best"
and "Skindom" and all improvements and modifications thereof (collectively, the
"Product") together and with related upsell products and any other form of
revenue associated with the Product (together with all upsells associated with
the Product, hereinafter collectively referred to as the "Upsells") and
Infotopia desires to engage Infomercial Management Company ("Management
Company")or such similar company as determined in the sole discretion of
Infotopia, to manage the advertisement, promotion, marketing, sale, distribution
and
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exploitation of the Product and Upsells on behalf of Infotopia, all in
accordance with the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. RIGHTS GRANTED. (a) In consideration of the compensation set forth
below, but subject to the conditions set forth in Clause 1(d), below, J Group
hereby grants and licenses to Infotopia the exclusive worldwide rights during
the Term (as defined below), inclusive of the right to sub-license, to jointly,
with J Group, advertise, promote, market, sell, distribute and exploit the
Product and related Upsells by any manner and in any and all media ("Rights"),
including without limitation, airing the Infomercial (as defined below),
commercial and promotional spots on broadcast, cable, satellite and all other
forms of television transmission now existing or hereafter developed, television
shopping programs such as QVC and HSN, radio, internet, all print media, direct
mail solicitation, inbound and outbound telemarketing, PI media, catalog sales,
continuity program, retail sales and all other channels or means of distribution
now existing or hereafter developed. The term "Infomercial" shall mean a
television commercial in length or lengths determined by Infotopia.
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(b) In connection with the Rights granted by J Group to Infotopia
hereunder, and subject to the conditions and limitations stated in the preceding
clause 1(a), J Group hereby grants to Infotopia the exclusive worldwide license
to use, jointly with J Group, all copyrights, patents, trademarks and all other
intellectual property relating to the Product owned, licensed and/or controlled
by J Group. J Group represents and warrants that copies of any patent
applications, patent licenses, patents, copyrights, copyright registrations,
trademarks and trademark registrations which it may own, license and/or control
with respect to the Product shall be provided to Infotopia upon request. In
addition, and subject to the conditions and limitations contained in clause 1(a)
hereof, J Group hereby grants to Infotopia the exclusive license to use, jointly
with J Group (i) any and all artwork and promotional materials, if any, that J
Group may own, license and/or control with respect to the Product, and (ii) the
names, likenesses, endorsements and testimonials of all endorsers and other
persons with respect to the Product but only to the extent of J Group's rights
relating thereto. All copyrights, patents, trademarks and all other intellectual
property relating to the Product owned, licensed and/or controlled by J Group
shall remain the sole property of J Group and neither Infotopia nor any third
party shall acquire any right, title or interest in such copyrights, patents,
trademarks or other intellectual property by virtue of this Agreement or
otherwise. Any unauthorized use of such copyrights, patents, trademarks or other
intellectual property by Infotopia shall be deemed an infringement of the rights
of J Group therein. Infotopia shall not in any way or at any time dispute or
attack the validity or contest the rights of J Group in or to any of such
copyrights, patents, trademarks or other intellectual property.
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(c) All of the Rights set forth in this clause 1 may be exercised and
exploited by Infotopia and Infotopia's name and logo shall be edited into all
versions of the Infomercials to be aired by Infotopia.
(d) All rights granted herein in this Clause 1 are subject to
Infotopia's satisfaction of the conditions set forth in this Agreement and
subject specifically to the conditions set forth in Clauses 3 and 4.
(e) During the Term hereof, Infotopia shall purchase all media time
to broadcast the Infomercial.
(f) Anything to the contrary herein notwithstanding, J Group shall
have the right to continue to sell the Jules & Xxxx and Bubbe's Best product
lines to its present clients who are set forth on Schedule A hereto (the
"Schedule A Clients"). Anything to the contrary herein notwithstanding and
subject to this Agreement continuing in effect, commencing with the airing of
the Infomercial in major markets, J Group shall pay Infotopia a royalty of five
(5%) percent on all receipts from sales to the Schedule A Clients.
2. ENGAGEMENT OF MANAGEMENT COMPANY; SERVICES OF MANAGEMENT COMPANY.
(a) Subject to the satisfaction of the conditions precedent set forth in Clause
4(b) hereof, Infotopia shall engage Management Company and its designees to
render services as Infotopia's exclusive management company during the Term of
this
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Agreement to manage and oversee all operations relating to the advertising,
promotion, ordering, sale, marketing, distribution and exploitation of the
Product and related Upsells, all on the terms and conditions set forth herein.
Infotopia and J Group understand that Management Company shall have the right to
render services to other person, firms or corporations either in the capacity in
which Management Company shall be engaged by Infotopia, or otherwise, as well as
to engage in any and all other business activities and to devote such time as it
may seem advisable, in its sole discretion, to such businesses.
(b) During the Term of this Agreement, Infotopia shall cause
Management Company, subject to Infotopia's performance of its obligations
hereunder to manage and oversee all operations relating to the advertising,
promotion, ordering, sale, marketing, distribution and exploitation of the
Product and related Upsells, including: (i) Coordination of advertising and
promotion for the Product and Upsells; (ii) Coordination of telemarketing
services; (iii) Coordination of television media buying; (iv) Coordination of
fulfillment; (v) Implementation of continuity program; (vi) Coordination of the
ordering of the Product and Upsells; (vii) Implementation of non-television
distribution channels for the Product and Upsells; (viii) Coordination of
customer service regarding the Product and Upsells; (ix) Oversee all
transactional, financial, business and contractual matters relating to the
marketing of the Product, including the negotiations of contracts (in
consultation with Infotopia) for all of the above services; and (x) Providing
general management and administrative services with respect to the day-to-day
operations of the marketing and distribution of the Product.
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(c) Infotopia shall designate a fulfillment center for the Product
who shall initially be Promotions Distributor Services Corp. ("PDS") and a
telemarketing service who shall initially be West Telemarketing ("West"). In the
event PDS and West are not willing to serve in those respective capacities,
Infotopia will select, in their discretion, other comparable companies.
Infotopia shall also have the right to make any changes in the fulfillment
center, telemarketing service and any other material vendor. All payments due
PDS, West, Management Company and/or their successors, for the services
rendered, shall be the sole responsibility of Infotopia.
(d) On or before the fifteenth day of each month, during the Term
hereof, Infotopia shall cause J Group to be provided with copies of all
telemarketing , fulfillment and media reports showing all activity for the prior
month, as well as any other reports, which J Group may reasonably request at any
time.
(e) On or before the fifteenth day of each month, Infotopia shall
cause to be wire transferred to J Group's bank account, all royalties due to J
Group based upon the prior months Gross Sales Revenues, on a priority, first
monies basis, without regard to whether or not the Adjusted Gross Revenues for
the prior month have been calculated. Notwithstanding any other liability that
Infotopia may have J Group under this Agreement, Infotopia specifically warrants
to J Group that any and all monthly royalty monies due J Group shall be
transmitted to J Group in accordance with this clause.
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3. OBLIGATIONS OF INFOTOPIA. Infotopia shall be responsible for
producing the Infomercial, funding all costs relating to the purchase and sale
of the Product and Upsells, including the purchase of media time and pay to J
Group the royalty hereinafter set forth in clause 4 (a) hereof. J Group shall
not have any responsibility whatsoever to pay for the costs, fees and/or
expenses relating to the Infomercial and/or for Product and/or Upsell
fulfillment to be sold via the Infomercial.
4. COMPENSATION TO J GROUP FOR THE LICENSE. (a) In consideration for
the license by J Group of the Rights set forth herein and in accordance with the
provisions of clause 2(e), Infotopia shall pay J Group a royalty of 5% of gross
sales, less returns, and consulting fees paid to Xxxx Xxxxx and Xxxxxx Xxxxxxx
(the "Royalty").
(b) Upon the execution hereof, Infotopia shall issue to J Group, a
number of shares of Infotopia's common stock (the "Shares") equal in value to
$500,000 and shall file a registration statement registering, at Infotopia's
expense, the Shares within 30 days from the date of execution of this Agreement.
Upon the effective date of the registration statement, J Group shall have 30
days to sell the Shares. In the event J Group, during such 30 day period, sells
the Shares, and realizes gross proceeds of less than $500,000, Infotopia shall
pay J Group the difference and/or issue to J Group such number of additional
shares so as enable J Group, upon liquidation, to realize, in the aggregate, not
less than $500,000. Any proceeds in excess of $500,000 shall belong to J Group.
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(c) J Group makes no representations or warranties that the
advertising, promoting, manufacturing, marketing, distributing and/or exploiting
of the Product and Upsells will be profitable.
5. ACCOUNTING. Adjusted Gross Revenues, as hereinafter defined, shall
be calculated on a monthly basis in conjunction with the business management
firm of Xxxxxx Xxxxxxxx Business Management, Inc. and said firm shall furnish
Infotopia monthly with an itemized statement setting forth the gross sales
revenues during the preceding month together with the computations of the
Adjusted Gross Revenues with respect thereto. For purposes of this Agreement,
Adjusted Gross Revenues shall be defined as gross sales of the Products and
Upsells less returns,
6. TERM OF AGREEMENT; CONDITIONS PRECEDENT.
The term of this Agreement shall commence and this Agreement shall be
effective upon the satisfaction of the conditions precedent set forth in clause
4(b) above. The Agreement shall continue, from year to year, providing however
Infotopia meets the following gross sales revenues:
(i) commencing October 1, 2001 through and including September 30,
2002, Infotopia shall have gross sales revenues for the Products and Upsells of
ten million ($10,000,000) dollars (the "First Year Sales Requirement"); and
(ii) thereafter, each subsequent year being measured from October 1
through September 30, Infotopia has gross sales revenues for the Product and
Upsells of twenty million ($20,000,000) dollars (hereinafter the "Minimum Sales
Requirement").
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Anything to the contrary herein notwithstanding, if the gross
revenues falls below $10,000,000 for the First Year Sales Requirement and/or
$20,000,000 for the Minimum Sales Requirement, the term shall nevertheless be
extended, from year to year, provided that the gross royalties that J Group
would have received if the First Year Sales Requirement and/or the Minimum Sales
Requirement had been met, are paid by Infotopia to J Group in cash and/or shares
of common stock. so that in the first year of this Agreement, commencing October
1, 2001 for the purpose of measuring gross sales, J Group receives a minimum
annual royalty of $500,000 and for the year commencing October 1, 2002 and each
year thereafter, J Group receives a minimum annual royalty of $1,000,000.
7. CUSTOMER LIST. The name, address, telephone number, credit card
information and all other customer data collected by J Group and Infotopia
relating to the Product and Upsell units sold after the effectiveness of this
Agreement during the Term ("Customer List"), shall be jointly owned by J Group
and Infotopia. Neither J Group nor Infotopia shall sell, lease, rent or
otherwise transfer all or any portion of the Customer List to any third party
without the written approval of the other part, which approval shall not be
unreasonably withheld.
8. INFRINGEMENT. J Group agrees to take all steps and do all filings
and registration to maintain all copyrights patent licenses, trademarks and all
other intellectual property relating to the Product in force, all at Infotopia
expense. J Group shall promptly notify Infotopia of any information obtained
regarding infringements or
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imitations by third parties of the Product or the intellectual property relating
thereto. In connection therewith, J Group agrees to fully cooperate with
Infotopia to stop such infringement or imitations. Any recovery of damages shall
be shared on an equal basis by Infotopia and J Group after deduction of all
costs and expenses paid by Infotopia relating to such infringement or
imitations. Infotopia acknowledges that Infotopia shall not, without the consent
and/or participation of J Group, defend or prosecute any action relating to the
Product or the intellectual property relating thereto and that J Group, at its
sole discretion, may elect to defend or prosecute, or to participate in the
defense or prosecution of, any action relating thereto, at Infotopia's expense.
In the event that J Group undertakes the defense or prosecution of any
litigation relating to the Product or intellectual property relating thereto,
Infotopia agrees to fully cooperate with J Group in any such proceeding, to join
with J Group as a party to any action brought by J Group if required or
requested by J Group, and to execute any and all documents and do all acts which
may be necessary or of aid at the determination of J Group's legal counsel, to
carry out such litigation. The provisions of this clause shall survive any
expiration or termination of this Agreement.
9. NON-COMPETE. Except as provided in clause 1(f) hereof, during the
Term of this Agreement, J Group shall not, directly or indirectly, either alone
or in participation with any other person or entity, engage in or be involved
with marketing or distributing any other product substantially similar in
design, composition or content to the Product, unless J Group first offers
Infotopia the right to participate in the marketing and distribution thereof.
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10. RIGHT OF FIRST REFUSAL. Except for the rights reserved in clause
1(f), during the Term of this Agreement, J Group shall grant Infotopia a right
of first refusal regarding the advertisement, promotion, manufacturing,
marketing, sale, distribution and exploitation of (i) any other product
substantially similar in design, composition or content to the Product that J
Group intends to develop and market. Infotopia shall have seven (7) business
days to determine whether Infotopia is interested in exploiting such product
offered by J Group on the same terms and conditions stated herein. If Infotopia
serves notice that it is not interested in any such product or fails to notify J
Group of its interest or lack of interest with respect to such product within
such seven (7) business day period, J Group shall then have the right to dispose
of rights in and to such product or exploit such product in any manner it shall
choose thereafter without any further obligation to Infotopia with respect
thereto. If Infotopia serves written notice that it is interested in such
product, Infotopia shall have the same rights to such product as it has to the
Product, providing however, that such product is commercialized by Infotopia
within one (1) year from the date Infotopia confirms its interest in such
product except, that such product shall not be subject to a separate Minimum
Sales Requirement.
11. REPRESENTATIONS AND WARRANTIES. Each party represents and
warrants to the other as follows:
(a) It has the requisite right power and authority to enter into this
Agreement and to grant the rights set forth herein.
(b) The execution and delivery of this Agreement by it and the
performance of its obligations hereunder, do not and will not conflict with or
result in a
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breach of or in a default under its organizational instruments or any other
agreement, instrument, order, law or regulation applicable to it or by which it
may be bound.
(c) This Agreement has been duly and validly executed and delivered
by it and constitutes its valid and legally binding obligation, enforceable in
accordance with its terms.
(d) It has not granted and will not grant any rights that would
conflict with or derogate from the rights granted hereunder.
(e) It has not previously entered into any agreement and shall not
enter into any agreement that would conflict with or derogate from the rights
granted or the services to be rendered hereunder.
12. TERMINATION BY INFOTOPIA. (a) Infotopia shall be permitted to
terminate this Agreement immediately by written notice to J Group upon the
occurrence of any of the following (i) if J Group files a voluntary petition
under the United States Bankruptcy Code; (ii) if J Group is the subject of an
involuntary petition Under the United States Bankruptcy Code which is not
dismissed within sixty (60) days after the filing thereof; (iii) if J Group
makes an assignment for the benefit of creditors, applies for or consents to the
appointment of any receiver or trustee of all or any part of its property; or
(iv) if J Group institutes a dissolution or liquidation proceeding with respect
to its business
(b) Infotopia shall be permitted to terminate this Agreement upon the
breach by J Group of any material representation, warranty, covenant or
agreement contained in this Agreement (unless such breach is the result of a
force majeure event).
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Prior to any termination pursuant to this subparagraph (b), Infotopia shall give
J Group written notice of, and thirty (30) days notice to cure such breach, if
such breach is curable, and if such breach is cured within such thirty (30) day
period, Infotopia shall not be permitted to terminate this Agreement. If such
breach is not curable (giving written notice of a non-curable breach being the
only requirement prior to termination) or such breach is not cured to
Infotopia's satisfaction within such thirty (30) day period, this Agreement
shall terminate without the need for further action by Infotopia. Such right of
termination shall be in addition to such other rights and remedies as Infotopia
may have under applicable law.
13. TERMINATION BY J GROUP. (a) J Group shall be permitted to
terminate this Agreement immediately by written notice to Infotopia upon the
occurrence of any of the following (i) if Infotopia files a voluntary petition
under the United States Bankruptcy Code; (ii) if Infotopia is the subject of an
involuntary petition Under the United States Bankruptcy Code which is not
dismissed within sixty (60) days after the filing thereof; (iii) if Infotopia
makes an assignment for the benefit of creditors, applies for or consents to the
appointment of any receiver or trustee of all or any part of its property; or
(iv) if Infotopia institutes a dissolution or liquidation proceeding with
respect to its business.; or (v) If Infotopia ceases to be a publicly traded
company.
(b) J Group shall further be permitted to terminate this Agreement
upon the occurrence of any of the following: (i) the breach by Infotopia of
Infotopia's agreements contained in ay of clauses 2(e),3,4, or 17 of this
Agreement, (ii) the
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unauthorized use by Infotopia of the Rights, (iii) the unauthorized uses by
Infotopia of any copyrights, patents, trademarks or other intellectual property
relating to the Product owned, licensed and/or controlled by J Group; or (iv)
the non-payment by Infotopia of any amount due to J Group herein above. Prior to
any termination pursuant to this subparagraph (b), J Group shall give Infotopia
written notice of, and ten (10) business days to cure such breach if such breach
is curable and if such breach is cured within such ten (10) business day period,
J Group shall not be permitted to terminate this Agreement. If such breach is
not curable (giving written notice of a non-curable breach being the only
requirement prior to termination) or such breach is not cured within such ten
(10) business day period, this Agreement shall terminate without the need for
further action by J Group. Such right of termination shall be in addition to
such other rights and remedies as J Group may have under applicable law.
(c) J Group shall be permitted to terminate this Agreement upon the
occurrence of any of the following: (i) the breach by Infotopia of any material
representation, warranty, covenant or agreement contained in this Agreement
(unless such breach is the result of a force majeure event). Prior to any
termination pursuant to this subparagraph (c), J Group shall give Infotopia
written notice of, and thirty (30) days notice to cure such breach, if such
breach is curable, and if such breach is cured within such thirty (30) day
period, J Group shall not be permitted to terminate this Agreement. If such
breach is not curable (giving written notice of a non-curable breach being the
only requirement prior to termination) or such breach is not cured within such
thirty (30) day period, this Agreement shall terminate without the need for
further action by J
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Group. Such right of termination shall be in addition to
such other rights and remedies as Infotopia may have under applicable law.
14. EFFECT OF TERMINATION; SALES AFTER TERMINATION. Upon termination
or expiration of this Agreement for any reason whatsoever, the following shall
occur: (a) all Rights shall revert to J Group and Infotopia shall have no
further rights whatsoever with respect to the Product, Upsells and the
intellectual property relating thereto: (b) Infotopia shall, at its own expense,
return any of J Group's intellectual property, artwork, or materials of any kind
in its possession or control; (c) for a period of three (3) months following the
expiration or termination of this Agreement, all pending orders for Product or
Upsells shall be filled to the extent inventory funded by Infotopia exists
relating to such orders, in which case, Infotopia shall account to J Group for
Adjusted Gross Revenues as provided for herein. Following the expiration or
termination of this Agreement, J Group shall have the right, but not the
obligation, to repurchase any Product and Upsells that Infotopia may have in its
warehouse at Infotopia's cost.
15. INDEMNIFICATIONS.
(a) Infotopia agrees to indemnify, hold harmless and defend J Group,
its officers, directors, shareholders, employees, affiliates, representatives,
designees (with respect to receipt of stock, stock options or warrants by
Infotopia hereunder), agents, attorneys, licensees, distributors, successors and
assigns from and against any and all losses, costs, damages, claims, suits,
actions, judgments demands, obligations, debts, liabilities, agreements and
expenses whatsoever (including without limitation, attorney's fees, court
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costs and reasonable investigation expenses) arising out of or in connection
with (i) any breach by Infotopia of any covenant, representation, warranty or
agreement contained herein, (ii) any unauthorized use by Infotopia of the
Rights, or (iii) any unauthorized use by Infotopia of any copyrights, patents,
trademarks or other intellectual property relating to the Product owned,
licensed and/or controlled by J Group.
(b) J Group agrees to indemnify, hold harmless and defend Infotopia,
its officers, directors, shareholders, employees, affiliates, representatives,
designees (with respect to receipt of stock, stock options or warrants by J
Group hereunder), agents, attorneys, licensees, distributors, successors and
assigns from and against any and all losses, costs, damages, claims, suits,
actions, judgments demands, obligations, debts, liabilities, agreements and
expenses whatsoever (including without limitation, attorney's fees, court costs
and reasonable investigation expenses) arising out of or in connection with any
breach by J Group of any covenant, representation, warranty or agreement
contained herein.
(c) The provisions of this clause shall survive any expiration or
termination of this Agreement.
16. INJUNCTIVE RELIEF. It is mutually understood and agreed that the
Rights granted to Infotopia herein are special, unique, unusual, extraordinary
and of unintellectual character, giving them a peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at law,
and that in the event of the unauthorized use by Infotopia of the Rights or the
unauthorized use by
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Infotopia of any copyrights, patents, trademarks or other intellectual property
relating to the Product owned, licensed and/or controlled by J Group, J Group
will be caused irreparable harm for which the remedy at law is inadequate.
Accordingly, J Group shall be entitled to preliminary and permanent injunctive
relief (mandatory or otherwise) in addition to damages, to enforce the
provisions of this Agreement and any other equitable relief which J Group deems
appropriate.
17. CONFIDENTIALITY.
(a) Infotopia agrees to hold all proprietary information and
materials received from J Group or its affiliates or learned during the Term,
whether orally or in written form or otherwise, relating to J Group's or its
affiliate's products or the business being conducted by J Group or its
affiliates (the "Proprietary Information") in strictest confidence and not to
use in any manner or to disclose the Proprietary Information to any third party
except as required by law, pursuant to court order or legal process. Infotopia
acknowledges that any non-permissible disclosure or use of such Proprietary
Information could materially prejudice J Group or its affiliates in the conduct
of its business and result in substantial losses and damages.
(b) J Group agrees to hold all proprietary information and materials
received from Infotopia or its affiliates or learned during the Term, whether
orally or in written form or otherwise, relating to Infotopia's or its
affiliate's products or the business being conducted by Infotopia or its
affiliates (the "Confidential Information") in strictest confidence and not to
use in any manner or to disclose the Confidential Information to any third party
except as required by law, pursuant to court order or legal process.
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Infotopia acknowledges that any non-permissible disclosure or use of such
Confidential information could materially prejudice Infotopia or its affiliates
in the conduct of its business and result in substantial losses and damages.
18. FORCE MAJEURE. No party shall be in breach of this Agreement or
be liable for damages if such party fails to perform hereunder or such party's
performance is delayed as a result of war, fire, flood, labor trouble, act of
governmental authority, riot, strike, accident breakage of equipment,
unavailability of materials, delay in production, delay of transportation
service, acts of God, or any other similar or different contingencies beyond the
reasonable control of the parties hereto. Notwithstanding anything to the
contrary contained herein, the foregoing provision shall not apply to the
obligations of Infotopia to fund the Costs set forth herein or to make any
payment due to J Group hereunder.
19. GOVERNING LAW; JURISDICTION. The provisions of this Agreement
shall be governed by and construed and interpreted in accordance with the laws
of the State of Massachusetts, without reference to choice or conflicts of law
principles. Except as otherwise provided herein, any and all suits or actions,
whether federal or state, for any reach of this Agreement, or otherwise arising
out of this Agreement, shall be filed and prosecuted in any court of competent
jurisdiction in the City of Boston, State of Massachusetts. The parties hereto
hereby consent and submit to the jurisdiction of the courts of the City of
Boston, State of Massachusetts and hereby agree that service of process on any
party may be effected by certified mail, return receipt requested, postage
prepaid. Each of the parties waives any objection that it may have based on
improper
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venue or forum non-conveniens to the conduct of any such suit or action in any
such court.
20. AMENDMENTS; WAIVERS; RIGHTS CUMULATIVE. This Agreement cannot be
modified, altered or otherwise amended except by an agreement in writing signed
by all of the parties hereto. No provision of this Agreement may be waived
unless in writing and signed by all of he parties hereto, and waiver of any one
provision of this Agreement shall not be deemed to be a waiver of any other
provision. No failure or delay on the art of any party in exercising any right,
power or remedy hereunder shall operate as a waiver thereof. No right, power or
remedy granted to the parties under this Agreement on default or breach is
intended to be in full or complete satisfaction of any damages arising out of
such default or breach, and any single or partial exercise of any such right,
power or remedy shall not preclude any other, or further exercise thereof, or
the exercise of any other right power or remedy. Each and every right, power or
remedy under this Agreement or any other document or instrument delivered
hereunder, or allowed by law or equity, shall be cumulative and may be exercised
from time to time.
21. ASSIGNMENTS. Neither party shall have the right to assign any of
its rights or obligations to any third party without the prior written consent
of the other party; provided that each of the parties shall have the right to
assign any of its rights or obligations to any parent, affiliate or subsidiary
company or to any other entity owning or acquiring all or substantially all of
such party's stock or assets, or any division or part of such party that is
charged with responsibility for this Agreement, without the prior
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written consent of the other party, so long as such assignee assumes all of the
assignor's obligations hereunder in writing. Notwithstanding any other provision
of this Agreement, any attempted assignment by either party without the prior
written consent of the other party except as permitted herein shall be void and
of no force or effect. This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and
permitted assigns.
22. COUNTERPARTS; FACSIMILE. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. This Agreement
may be executed by facsimile, and signatures on a facsimile copy hereof shall be
deemed to authorized original signatures.
23. CONFIDENTIALITY OF TERMS. Each of the parties agrees to keep the
terms and conditions contained in this Agreement confidential, and agrees not to
disclose said terms and conditions to any third parties other than its
representatives, attorneys and accountants except as otherwise required by law;
provided that either party shall have the right to disclose the terms contained
in this Agreement through a business plan, offering memorandum, prospectus or
similar document for the purposes of raising capital for such party provided the
other party has consented thereto in writing. Each of the parties agrees that
such party shall not make any public announcement, issue any press release or
other publicity or confirm any statements by third parties concerning the
transactions contemplated hereby, without the prior written consent of the other
party (such consent
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may be given by e-mail or fax) except as otherwise required by law or as set
forth in the next sentence. J Group agrees to give a reply to Infotopia's
request for approval of a press release within three (3) business days from
receipt, and if J Group fails to do so, such press release shall be deemed
acceptable to J Group. The parties further and specifically agree that Infotopia
not issue an initial press release until (i) J Group has approved such release
in writing, and (ii) J Group has received the Shares.
24. ADDITIONAL DOCUMENTS; COOPERATION. Each of the parties agrees to
execute any and all additional documents or instruments, to obtain all required
licenses, permits and approvals necessary to implement the transactions
contemplated herein, to cooperate with the other party and to do any and all
things necessary or desirable to effectuate the purposes of this Agreement.
25. INDEPENDENT CONTRACTORS. It is expressly agreed and intended that
each party hereto shall remain a separate legal entity from the other and each
shall be an independent contractor responsible only for its own actions. Nothing
contained in this Agreement shall be construed as establishing an
employer/employee, partnership or joint venture relationship between the parties
hereto. Each of the parties shall be responsible for payment of all of its own
taxes on compensation received by it under this Agreement.
26. NOTICES. All notices, requests, demands and other communications
(collectively "Notices") given or made pursuant to this Agreement shall be in
writing and shall be deemed received (i) on the same day if delivered in person,
by same-day courier
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or by facsimile transmission provided that if sent by facsimile transmission, a
copy is also sent by certified mail, return receipt requested, postage prepaid,
(ii) on the next day if delivered by overnight mail or courier, or (iii) three
(3) business days after the date of deposit in the mails, if being sent by
certified mail, return receipt requested, postage prepaid, to the parties at
their addresses as set forth at the beginning of this Agreement. Any of the
parties to this Agreement may from time to time change such party's address for
receiving notice by giving written notice thereof in the manner set forth above.
27. NO ADVERSE CONSTRUCTION. The rule that an agreement is to be
construed against the party drafting the agreement is hereby waived by the
parties hereto, and shall have no applicability in construing this Agreement or
the terms of this Agreement.
28. LEGAL COUNSEL. Each of the parties acknowledges that it had the
right and opportunity to seek independent legal counsel of its own choosing in
connection with the execution of this Agreement, and each of the parties
represents that it has either done or that it has substantially declined to do
so, free from coercion, duress or fraud.
29. LIMITATIONS OF LIABILITY. In no event shall J Group have any
liability to Infotopia, Infotopia's customers or any third party, for any cause
of action relating to this Agreement for any incidental, consequential, special
or speculative damages, including, without limitation, damages for loss of
profits or use, business interruption, or loss of goodwill, irrespective of
whether J Group had advance notice of the possibility of such damages.
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30. SEVERABILITY. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition, unenforceability
or non-authorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
31. HEADINGS. Any Paragraph headings contained in this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
32. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes any prior understandings or agreements between the parties
hereto.
33. ATTORNEY'S FEES. If any action, suit or other proceeding is
instituted to remedy, prevent or obtain relief from a default in the performance
by any party of such party's obligations under this Agreement, the prevailing
party shall recover all of such party's reasonable attorney's fees and costs
incurred in each and every such action, suitor other proceeding, including any
and all appeals or petitions therefrom.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first set forth above.
INFOTOPIA, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------
J GROUP HOLDINGS, INC.
By: /s/ Xxxx Xxxxx
------------------------------
25
SCHEDULE A
AROMA COMPANY (Distributor for Germany and Austria)
XXXXXXX
BEAUTYHABIT
BEAUTYSPY
BERGDORF XXXXXXX
XXXXXXXX XXXXX
XXXXXXXXX XXXXXXXXX
XXXXXX SU
XXXXXX XXXXXX
DDC LAB
XXXXXXX MARKETING SERVICES
FORTY FIVE TEN
GATSBYS
GET CHARMED
GKUK LONDON LTD. (St. Martins Lane Hotel)
GOLD/KIOSK (Delano Hotel)
GREENHOUSE SPA
HAMBURGER HOF
XXXXX XXXXXX
XXXX XXXXX
XXXXXX XXXXXX
XXXXXX XXXXXXX
JUST KID CUTS
KBOND
KIRNA ZABETE
KOMMY INTERNATIONAL
KURFURSTEN PARFUMERIE
XXXX XXXXXX ET AL
XXXXX BOSTON
XXXXXXX XXXXXX
XXXXXXXX XXXXX
MID AMERICA OVERSEAS INC.
NANADEBARY
NINE ZERO HOTEL (Boston)
NORDSTROM
OFF+CO.
PALMETTO I
PALMETTO II
PIR
POUT
XXX XXXXXXXX INC. (Xxxx Xxxxx)
RUBY'S BALM
SASABEE
SCARLETT
SEPHORA
SEPHORA DFS USA REGION
SEPHORA S
SKINS LOUNGS (Amsterdam)
XXXXX/HALL II
XXXXX/XXXX I
XXXXXXX XXXXXXX
SUGAR
THE XXXXXXXXX GOLD KIOSK UK
TOOTSIES
XXXX XXXXXX
